Senators push FCC on Comcast, net neutrality at hearing

Lawrence Lessig teamed up with the Christian Coalition and the Writers Guild …

In his opening remarks at a Senate Commerce Committee hearing on network neutrality this morning, Jay Rockefeller (D-WV) got his first turn at the microphone and immediately stepped away from his prepared remarks. "You're not looking very cheerful right now, and you usually do," he told FCC Chairman Kevin Martin. Martin had reason to look dour. Seated alone at the witness table, he was only minutes away from a dogpiling by Byron Dorgan (D-ND) and John Kerry (D-MA) over both network neutrality and the relative slow growth of US broadband. He was lucky enough to be excused before the Christian Coalition suggested that all bandwidth problems could be fixed by simply offering fewer porn video-on-demand channels and using them for Internet traffic instead.

The Democratic senators on the committee did most of the talking at the hearing, and the ones who spoke were surprisingly informed about the topic. Even law professor Lawrence Lessig, who appeared at a second panel after Martin, opened his remarks by saying how rewarding it was to see how well people understand the network neutrality issue after several years of debate.

The criticisms of network neutrality came from the Republican side of the committee and generally followed the argument laid out by John Sununu (R-NH). He worried that Congress needed to tread cautiously when it came to thinking about "what we think competitors will do in the future." The law of unintended consequences suggests that regulation could hamper Internet growth, in his view, and any enforcement of neutrality should be after the fact. If there's a problem, then deal with it; otherwise, leave the market alone.

Kevin Martin agreed. He told the committee that no new regulations were needed at this time, but did make clear that the FCC would "enforce the principles it has already adopted" in its Internet Policy Statement. In discussing the issue of network neutrality, Martin made clear what his own preferred approach would be when it comes to situations like Comcast's blocking of certain peer-to-peer traffic. In his view, it matters whether network management practices distinguish between legal and illegal activity (the FCC will only protect legal activity), whether the service providers have adequately disclosed their management practices, and whether management techniques arbitrarily block or degrade a particular application rather than problematic content.

He also had little good to say about Comcast's Sandvine network management system, saying that the two public hearings that the FCC has held on the matter have shown him that Comcast was not even capable of knowing when a segment of its network was congested. Instead, it used reset packets to interfere with uploads even when congestion was not a problem.

Dorgan, Kerry, and Rockefeller all used their question time to take issue with the idea that network neutrality represented new, burdensome government regulation of the Internet. Rockefeller pointed out that the Internet is currently regulated to address issues like spam, VoIP 911 services, and Internet access for schools through the Universal Service Fund; simply arguing that something is "regulation" has little to do with whether the idea itself is a good one or a bad one.

Kerry took a stronger line, saying that everyone who questions the government's basic investment in science and research has their answer "every time they check their e-mail." Recognizing the unintentional problems that regulation can create, Kerry called for "principles, not nitpicky regulatory structure."

Dorgan, one of the co-sponsors of a network neutrality bill still pending in the Senate, likewise was incredulous that anyone could consider this some kind of intrusive government interference. "Who on earth is standing up for discrimination?" he thundered.

Well, Ted Stevens (R-AK) is, for one. Though he said little at the hearing, the octogenarian did offer his brief take on network neutrality: "extensive regulation of the Internet, that's what net neutrality means to me." Pithy.

Stevens and other suggested that "public indignation" and market forces would solve any problems that would arise, and the debate veered into familiar territory about broadband penetration, duopolies, open access to local loops, OECD numbers, and the like.

But Lawrence Lessig wasn't satisfied with the arguments that we should simply wait for evidence of harm or that we should allow ISPs to have "pricing flexibility" when it comes to charging content owners for better service (something advocated by an AEI researcher at the hearing). Such an approach "fundamentally misunderstands how investment decisions are made in Silicon Valley," said Lessig. Venture capitalists and entrepreneurs are making bets today about what networks will look like in five years; network neutrality, far from exerting a chilling effect on innovation, could instead provide the certainty that innovators need to make bets on the next big thing.

Finally. Michelle Combs of the Christian Coalition testified during a second panel and offered her own novel solution to solving the sorts of capacity issues that Comcast used to justify its current network management practices. The cable operator could simply pull two of its VOD porn channels and use them to offer more Internet bandwidth; capacity problem solved! Though one wonders, if this solution were even practical, how much of the additional bandwidth would still be used for porn.